Ghulam Mohamad vs Abdul Aziz and others

(1) This is an application to revise an order dated 10th May 1969 passed by the Munsiff Doda (in a suit for recovery of Rs. 500/. alleged to have

been extorted by the defendants from the plaintiffs) holding that the suit was governed by the provisions of the Agriculturists Relief Act, 1983,

hereinafter referred as to the Act and directed the plaintiffs to make the necessary amendment in the plaint. The learned Munsiff seems to have

treated the suit as one falling under the last clause of Section 3 (b) of the Act.

(2) Mr. Kotwal appearing for the petitioners has urged that the order of the learned Munsiff is based on a total misconception of law and the suit

has to be tried under the ordinary law and not under the Act.

(3) Mr. I. D. Grover, learned counsel for the respondents has, however halfheartedly con"" tended that the provisions of the Act apply to the

present suit by virtue of the last clause of Section 3 (b) of the Act,

(4) For a proper appreciation of the point involved in the case, I think it would be advantageous to reproduce Section 3 of the Act.

(3) Except as may hereinafter be otherwise provided, the provisions of this Regulation apply to

(a) Suits for an account instituted by an Agriculturist under the provisions hereinafter contained and

(b) Suits, in which the defendant, or any one of the defendants is an agriculturist, for the recovery of money alleged to be due to the plaintiff.

On account of money lent or advanced to, or paid for, the defendant or as the price of goods sold, or

On an account stated between the plaintiff and the defendant, or

On a written or unwritten engagement ,for the payment of money not hereinafter provided for.

(5) Even a cursory perusal of the last clause of Section 3 (b) of the Act reproduced above, make it clear that it envisages only these suits in which

there is some undertaking, contract, covenant or promise by the defendant to pay a sum of money. The clause contemplates claims of pecuniary

character arising out of some contractual obligation between the creditor and the debtor and excludes suits based upon tort. In order that a suit

may fall within the ambit of the said clause it is necessary for the plaintiff to allege and prove that there was some contractual engagement to pay

certain sum of money. In the absence of a contractual engagement a suit cannot approximately fall within the sweep of the said clause. I am fortified

in this view by a decision of the Bombay High Court in Sheikh Ghulatn Jailanee V. Kashinath Bapuji, ILR 25, Bombay, 244, wherein it was held

that the corresponding provision of the Dekhan Agriculturists 'Relief Act', related only to contractual engagements.

(6) The decision of this court in civil revision entitled Shaban Dar. V. Hon'ble Judicial Minister 42 (1940) PLR J&K 220. which has been relied

upon by the learned trial court in support of its order does not at all help the respondents. The suit out of which that revision arose was based upon

a bond which clearly fell within the ambit of the last clause of Section 3 (b) of the Act. It would be worthwhile to refer to the following observations

made in the judgment given in that case .

The object of the Legislature appears to be to include within the last clause of Section 3 of the Agriculturists Relief Regulation all claims of a

pecuniary character arising out of contract whether written or unwritten and to bring them within the special jurisdiction created by the

Regulations.

(7) The learned Munsiff does not seem to have carefully read either the provisions of Section 3 of the Act or the aforesaid ruling relied upon by him

and has, therefore, arrived at a conclusion which is manifestly erroneous.

(8) The claim for money in the present suit is based upon the allegations of extortion which, in my opinion, does not imply any contract or promise

to refund the money. The difference between extortion and contractual obligation is too obvious to be missed. In suits based upon tort, there can

be no question of engagement written or unwritten for payment of money. Upon a proper construction of Section 3 (b) of the Act, it cannot be

held to apply to a suit for refund of money alleged to have been extorted.

(9) For the foregoing reasons, I am unable to sustain the order passed by the learned Munsiff, Doda Accordingly I allow this revision, set aside the

aforesaid order passed by the Munsiff and remand the case to him for trial and decision under the ordinary law.